delegated legislation(topic2) Flashcards
memorise
what is delegated legislation?
law made by some person or body other than parliament
where does the authority to make D.L. come from?
parent/ Enabling act
what does the D.L. create?
a framework of the law that delegates power to others
state to who the Access to Justice Act 1999 delegates its power to and gives power to?
1) delegates power to the lord chancellor
2) gives power to various aspects of legal funding scheme
state to whom the Dangerous Dogs act 1991 delegates power and give power?
1)delegates power to the home secretary
2)gives the power to add new breeds to the dangerous dog’s list
state to whom the Road Traffic Act 1988 delegates power and gives power?
1) delegates power to the transport minister
2) ban the use of mobile phones while driving
what are the three types of delegated legislation
1)by-laws
2)orders in council
3)statutory instruments
define statutory instruments
these give power to a minister to make rules and regulations for governing things in his areas
define orders in the council
these are exercised by the king and the legislative privy council
-they have the power to make laws in emergencies or when Parliament is not sitting
define by-laws
these are created by the local authority, public utilities, touch councils, or nationalized bodies
what are the needs for D.L?
1) expert knowledge
2) local knowledge
3)detailed knowledge
4)law in an Emergency
what are local by-laws permitted under?
Local Government Act 1972
why do bylaws exist?
Local councils and corporations are in the best position to make regulations for their areas, the government cannot know what is best for each area
give 2 examples of by-laws
1)parking restrictions
2)littering restrictions
state the brief facts about the R v Fadol case
1) he put his feet on a train seat
2) he got fines - one-year conditional discharge and ordered to pay £50
what was the parent act for R v Fadol
1888 Railway Regulation Act
who was power given to in the R v Fadol case
Merseyside rail
why was the by-law passed in R v Fadol
since the offender was behaving in a disorderly indecent or offensive manner
what type of case is Boddington v BRB 1998
civil case
what are two types of by-law cases
1)Boddington v BRB 1998
2) R v Fadol
what was the parent act in Boddington v BRB 1998
transport act 1962
state the brief facts of Boddington v BRB 1998
Mr Boddington was caught smoking on a train carriage- and this case went up to the House of Lords
who was the power given to in Boddington v BRB 1998
East Sussex trains
why was the by-law passed in Boddington v BRB 1998
since the law prohibited smoking on trains - by law 20 of the British railways boards by-laws 1965, and it caused health risks
within orders in council are privy councils - what are privy council made up of?
made up of prime ministers, members of the government, and legal advisers
what are the 3 occasions when an order in councils can be made
1)to transfer Responsibility between government departments
2)make law in an emergency under the civil law contingencies act 2004
3)to bring acts into force
how are orders in the council made?
they are drafted by government departments and approved by the king and privy council.
where does the power to create order in the council come from?
come from parent/enabling act
what do orders in council allow the government to do
allows them to make legislation without having to go through the legislative process
what is the order in the Council for the Dangerous Drugs Act 2008
reclassifying cannabis, cannabis resin, cannabinol, and cannabinol derivatives from class c to class B drugs
what was the parent act for Dangerous drugs act 2008
misuse of drugs act 1971
when did the orders in the council come into force for Dangerous Drugs Act 2008
2008
how do you know that the Dangerous Drugs Act 2008 is an order in the council
it is an OIC =’amendment’
what are government departments within statutory instruments
there are about 15 government departments, each one dealing with a different area of policy
other key information about statutory instruments
this is a major method of law-making as about 3,000 statutory instruments are brought into force each year
give 2 examples of Statutory instruments
1) The Chemicals Regulation 2009
- the minister made this for work and pensions under the power given in the (European Communities Act 1972)
2)police codes of practice concerning stop and search, arrest, and detention
- these were made by ministers of justice under the powers in the (police and Criminal Evidence Act 1984)
what are the parliamentary controls over delegated legislation
1)the enabling act
2)affirmative resolutions
3)negative resolutions
4)questions by MPs
5) scrutiny committee
6)super-affirmative resolutions
what is the enabling act and its factors(parliamentary control)
1) who can make the D.L
2) whether it applies to the whole country or only certain areas
3) whether it needs to be laid before parliament
4) whether the government department must consult with anyone before making regulations
what are questions by MPs (parliamentary control)
1) individual ministers may also be questioned by MPs in parliament in the work of their departments, and this can include questions about proposed regulations.
explain an affirmative resolution giving an example (parliamentary control)
1)explaining the change in DL in a parliamentary vote
e.g P.A.C.E - the enabling act that allows the home secretary to change police rules if Parliament agrees
explain negative resolution by giving an example(parliamentary control)
laying the D.L. before parliament, if no one disagrees it becomes law( it takes 40 days).
e.g teachers’ pay rise
explain super affirmative resolution and give an example ( parliamentary control)
presents the D.L. to both houses for a vote.
-may need to present to scrutiny committee
-most careful examinations of legal change therefore it is most democratic.
e.g Digital Economy rules regulation
explain scrutiny committee (parliamentary control)
- this committee reviews all statutory instruments and where necessary, will draw the attention of both houses of parliament to points that need further consideration
translate ‘ultra vires’ (judicial control)
‘beyond the power’
D.L. can be challenged in the high court, but why? (judicial control)
judicial review is necessary because delegated legislation may not be democratic- so this can stop it.
when someone challenges D.L. they have to prove ‘‘locus Standii ‘ - define the word
they are directly affected by the delegated legislation
what are the three types of judicial reviews
1)procedural ultra vires
2)substantive ultra vires
3)unreasonable ultra vires
explain procedural ultra vires giving an example.
1) the body has the power to execute D.L. but did not follow the correct procedure
2) e.g. Aylesbury mushroom case 1972- minister of labor did not follow a specific procedure when passing the D.L against mushroom growing - this led to the Mushroom Growers Association going against it
Explain substantial ultra vires giving examples
1) the body making the D.L. has gone beyond its powers or done something it never had the power to do.
e.g Strickland 1896- by-law banning singing or reciting of any song -however this law was deemed as absurd and therefore removed
explain unreasonable ultra vires giving an example
1)a D.L so unreasonable that no public body would incorporate it
2)e.g Picture Houses Ltd v Wednesbury Corporation (1948) - by-law banning children from watching cinema on weekends- this was deceased as unreasonable and therefore removed
state the effectiveness of procedural control and its main issue
1) ensures that procedures are followed- e.g consulting with parties
2)however its a very technical legal issue- requires parties’ knowledge to bring a case.
state the effectiveness of substantive control and its main issue
1) stops ministers and other bodies from exercising powers beyond those agreed by parliament
2)however, it is rarely used, the costs of judicial review are high and have to be covered by people who bring cases
state the effectiveness of
unreasonable control and its main issue
1) prevents abuse of power that has been legally given by the parent act
2)however, the proof is difficult to acquire
+wednesbury unreasonable test - something was so unreasonable that no reasonable person could have made it.
